Tread Carefully While Treating Member-Elect

I am the president of a small lobbying firm and I have a question about gifts to newly elected Members. Employees of my firm strongly supported a candidate who was recently elected to the House for the first time. We were thrilled by his election and we would love to take him to a celebratory dinner. But before doing so, I wanted to make sure that it is allowed. I know that rules prohibit us from taking a current Member to dinner. What about a Member-elect?

As you appear to be well aware, the Honest Leadership and Open Government Act of 2007 established new restrictions on gifts from lobbying firms to Members. Specifically, the act prohibits your firm from making a gift to a covered legislative branch official with knowledge that the gift may not be accepted under House or Senate rules. Violations could lead to civil or even criminal penalties.

In general, the House and Senate gift rules prohibit all gifts to covered legislative branch officials unless an exception applies. A current Member, of course, qualifies as a &ldquo;covered legislative branch official.&rdquo; And paying for dinner would qualify as a &ldquo;gift.&rdquo; Therefore, barring an applicable exception to the gift rule, you are correct that federal law prohibits your firm from treating a Member to dinner.

Note that &ldquo;covered legislative branch official&rdquo; also includes most Congressional employees. Therefore, if your Member-elect happens to be a Congressional staffer, he would qualify as a &ldquo;covered legislative branch official,&rdquo; and the gift prohibition would therefore apply to him.

On the other hand, assuming that he is not a staffer, the act would not apply. This is because the statutory definition of a &ldquo;covered legislative branch official&rdquo; does not include a newly elected Member. Therefore, on its face, the act does not prohibit your firm from the dinner you have planned.

But that is not the end of the story. While it may be true that the act permits you to make a gift to a Member-elect, there remains the question of whether House rules would nevertheless forbid the Member-elect from accepting one. Here, the House Ethics Manual has language directly on point, and it is more good news for you. It states that a newly elected Member does not become subject to House rules until the Member&rsquo;s pay and allowances begin. For Members elected in a regular election, this is typically Jan. 3. For those elected to fill a vacant seat, it is typically the day following the special election. So long as your dinner occurs before the applicable date, the House gift rules would not prohibit the Member-elect from accepting. Incidentally, the Senate Ethics Manual likewise states that the Senate gift rules apply only to current Senators.

But beware that not all state laws are consistent with the U.S. House and Senate rules on this point. While you do not mention any dinner plans with state lawmakers, if you do have any such plans, be sure to check the applicable state laws regarding gift prohibitions. In some states, gift prohibitions apply not just to sitting lawmakers but also to newly elected lawmakers who have yet to assume office.

So, neither the act nor the Congressional gift rules prohibit gifts to newly elected Members. But I would hold off on making those reservations quite yet. There is one more issue to consider.

The House Ethics Manual cautions that &ldquo;while a newly elected House Member generally is not subject to the gift rule,&rdquo; a Member-elect is subject to statutory ethics provisions such as the bribery and gratuity statute. That statute makes it a crime for you to provide something of value to a Member in exchange for an official act. The fundamental requirement of a bribery prosecution is the existence of a link between the thing of value and an official act. Here, it is clear that you do not have anything like that in mind. In the absence of a link between the dinner and an official act, the bribery and gratuity statute would not apply to your dinner.

Nevertheless, there are good reasons to tread carefully, particularly if you expect your firm&rsquo;s lobbying efforts to involve the newly elected Member. Suppose you begin lobbying the Member next year on behalf of a client. Suppose further that your lobbying efforts are successful. If, for some reason, your activities with the Member should ever come under investigation, government investigators might take a different view of the post-election dinner. It could prove both costly and time-consuming to demonstrate to investigators that any action taken by the Member in support of one of your client&rsquo;s positions was not connected to your dinner. While the likelihood of such an investigation may be remote, and the likelihood of liability even more remote, the risks at least merit consideration before reaching for the check. Perhaps the Member-elect feels like splurging on a celebration.

C. Simon Davidson is a partner with the law firm McGuireWoods. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.